1373-01-M The Salvation Army (Maxwell Meighen Centre), Applicant v. Canadian Union of Public Employees, Local 3798, Responding Party.
BEFORE: Mary Anne McKellar , Vice‑Chair.
DECISION OF THE BOARD; October 11, 2001
This is an application under section 114(2) of the Labour Relations Act, 1995 (“the Act”).
The application relates to Paul Pakeman, the applicant’s PSU Case Manager. The application asserts that Pakeman exercises managerial functions and is employed in a confidential capacity in matters relating to labour relations. Schedule “A” to the application provides particulars in support of these assertions, including reference to Pakeman’s involvement in matters pertaining to hiring and firing.
Schedule “A” concludes as follows:
The [applicant] submits that the position of PSU Case Manager is managerial in nature, is of a confidential capacity in matters relating to labour relations, and ought to be excluded from the bargaining unit pursuant to ss. 114(2) and ss. 1(3)(b) of the Labour Relations Act, 1995.
- The responding party did not file a response. By letter dated October 1, 2001, it advised the applicant and the Board as follows:
. . after conducting its investigation, CUPE is not disputing the above-noted application
- Section 114(2) of the Act provides as follows:
If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.
- Section 1(3)(b) of the Act provides:
Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee,
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
- Paragraph 5 of Board Form A-41 (Application Regarding Employee Status) reads:
Describe how the status question has arisen. (Note that the Board has no jurisdiction to determine whether or not a person or position is in a bargaining unit. The Board’s jurisdiction is limited to determining whether or not a person is an “employee” or a “guard”, or whether a person exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations).
- Having regard to the material before it, and pursuant to sections 1(3)(b) and 114(2) of the Act, the Board hereby determines that Paul Pakeman is not an employee for the purposes of the Act.
“Mary Anne McKellar ”
for the Board